Mark Tighe of The Sunday Times and An Garda Sí­ochána (FOI 2014)

Case Number: 160549

Whether AGS was justified in its decision to refuse access to four audit reports on the ground that they fall outside the scope of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 23 February 2016, the applicant submitted a request to AGS for, among other things, copies of the following four audit reports:

The review audit report of the National Bureau of Criminal Investigation (NBCI).

The review audit report of the Mayo Division.

The audit report of the Cavan/Monaghan Division.

The audit report of the Regional Support Unit Eastern Region.

On 25 April 2016, AGS issued four separate decisions refusing access to the records on the ground that they are not captured by the scope of the FOI Act. On 29 June 2016, the applicant sought an internal review of the decision to refuse access to the reports sought. On 20 July 2016, AGS upheld its original decision. The applicant sought a review by this Office of that decision on 8 December 2016.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records at issue and to the submissions of the parties on the matter.

Scope of the Review

AGS refused access to the entirety of the records requested on the ground that they are not captured by the scope of the FOI Act. During the course of this review, this Office issued decisions in Case Nos. 160257 and 160258 (available on www.oic.ie), in connection with requests for access to certain audit reports of AGS that were, in both form and content, similar to the records under consideration in this review.

Subsequently, in its submissions to this Office, AGS stated that it is willing to release parts of the four records at issue to the applicant. This review is therefore concerned with whether AGS was justified in its decision to refuse access to the remaining parts of the records on the ground that the withheld information falls outside the scope of the FOI Act and/or is exempt from release. For the assistance of the applicant, I have outlined below those parts of the various reports which AGS has stated it is willing to release.

Preliminary Matters

It should be noted that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and of the reasons for my decision is limited.

Additionally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on AGS of satisfying this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.

Analysis and Findings

Before considering each record, it is important to bear in mind the limited extent to which AGS is subject to the FOI Act. The vast majority of bodies are deemed to be public bodies for the purposes of the Act by virtue of their inclusion in the categories set out in section 6 of the Act. Section 6(2) states that an entity specified in Part 1(n) of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the Act.

Part 1(n) of Schedule 1 of the Act provides that section 6 does not include a reference to AGS "other than insofar as it relates to administrative records relating to human resources, or finance or procurement matters". This Office takes the view that the purpose of Part 1(n) is to restrict the right of access to records concerning those functions or processes of AGS that relate to the administration or management of the organisation, and only in relation to matters concerning human resources, or finance or procurement matters. Records relating to the core functions of AGS, such as the investigation of criminal activity, are excluded from the ambit of the Act.

Record 1
This is a review audit report of the NBCI from November 2015, following an earlier audit report from December 2014. In Case 160258, I considered whether that earlier report should be released. I found that a number of the matters considered in the earlier report comprised administrative matters relating to human resources, or finance or procurement and that certain parts of the report were subject to the provisions of the Act, including matters relating to management of attendance, overtime and allowances, management of travel and subsistence, procurement of goods and services, sickness absence records, and financial management. The review audit report at issue in this case examined how the recommendations of the earlier report had been implemented.

In its submission to this Office, AGS stated that it is willing to release the following parts of the report:

Page 2: All text from "At the time of audit ..." onwards under the heading "Resources"

It argued that the remainder of the record is outside of scope, pursuant to Schedule 1, Part 1(n). Having carefully examined the report, I am satisfied that the remainder of the report is concerned with matters that comprise core functions that are excluded from the scope of the FOI Act, such as drugs storage and reporting and property and evidence management, or is concerned with more general aspects of the audit, such as audit methodology and scope, that are not confined to administrative matters relating to human resources, or finance or procurement. I am satisfied, therefore, that the remainder of the report falls outside the scope of the FOI Act and I find that the AGS was justified in refusing access to the remainder of the report.

Record 2
This is a review audit report of the Mayo Division of AGS, following an earlier audit report from July 2014. In Case 160258, I considered the question of access to both reports. I issued my decision in that case on 2 February 2017. In its submission in respect of this particular record, which was drafted prior to my decision issuing in Case 160258, AGS stated that it is willing to release certain parts of the report. In the majority of instances, my decision directed the release of more information than AGS is prepared to release. Therefore, I will repeat my findings from Case 160258 that the following parts of the record concern administrative matters relating to human resources, finance and/or procurement and are within scope:

Page 2: Review Audit Opinion 3

Page 3: Review Audit Opinion 5

Pages 5/6: All text under section headed "3. Procurement"

Page 8: All text under section headed "5. Financial Management"

Pages 9/10: All text under section headed "6. Management of Overtime and Allowances"

AGS argued that certain information that is within scope is exempt from release under section 37(1), which protects personal information. In Case 160258, I noted that AGS had failed to identify any particular information that it contended was personal information. In this instance, AGS has submitted that there is a reference to an identifiable individual via a particular financial claim. While I accept that the group of members of AGS to whom that part of the record refers may be very small, I do not accept that the information is specific enough in itself to allow for identification of the individual, and therefore I find that section 37 does not apply to exempt the information from release.

In summary, therefore, I find that AGS was not justified in refusing access to the parts of the record I have identified as coming within scope on the ground that they fall outside of the scope of the Act or that they are exempt under section 37(1).

I further note that AGS has also identified further parts of the records that it is willing to release that I did not direct for release in Case 160258. The parts in question, and which I expect AGS to release, are as follows:

Pages 6/7: The first two paragraphs under the subheading "Update in relation to issue" under the Section headed "4. Vehicles Seized"

Page 7: All text from "A cheque for the total amount" onwards

Page 11: The second paragraph under the subheading "Findings form original audit" under the Section headed "8. Official Vehicles"

Record 3
This is an audit report of the Cavan Monaghan division, dated November 2015. AGS stated that it is willing to release the following parts of the report:

Page 9: All text under the subheading "Priority 2" to "... contract delivery" ; Text from "Absence records were ..." to "... statistics:-"

Page 10: All text from "Table 1 ..." to "... reduced pay"

Page 11: The first sentence under the subheading "Bailieboro District"

Page 13: All text from "No significant delays ..." to "... examined in detail" ; All text from "The Divisional Officer ..." onwards

Page 14: The first three paragraphs

Pages 15/16/17: All text

Page 18: All text apart from the last paragraph under the subheading "Monaghan District"

Page 19: All text apart from the second paragraph under the subheading "Cavan District"

Page 20: All text from "station attendant ..." to " ... official records" ; All text from "Management Response" to "... Cards are noted"

Page 40: All text under the heading "11. Financial Management" apart from the final sentence ; All text under the subheading "Prompt Payment of Accounts Act 1997" to "... stamp was visible"

Page 41: All text from the subheading "Recommendations" onwards

Page 42: All text to "Recommendations have been noted"

Page 46: All text

I should note here that in a small number of instances, it was unclear to me as to what specific parts of the report AGS was prepared to release. I have included those parts as coming within the scope of this review. AGS argued that the remainder of the report is outside of scope, pursuant to Schedule 1, Part 1(n). Having carefully examined the record, I am satisfied that the majority of the remainder of the report falls outside the scope of the Act (I will address separately pages 10 to 12 later in this decision). However, I am satisfied that the following information concerns administrative matters relating to human resources, finance, or procurement and is within scope:

Page 27: The first three lines of text ; All text under the subheading "Management Response"

Page 40: All remaining text

Page 41: The first four lines of text

The report also includes an appendix entitled "Record of Control Failures", which comprises a table of specific issues discovered during the audit process. I am satisfied that much of the appendix concerns operational matters (e.g. drugs, property) and is therefore outside of scope. However, certain parts of the appendix detail findings on administrative matters relating to human resources, or finance or procurement. I find that all text relating to the following is within scope:

Under Divisional:

The findings and suggested remedy under the headings Management of Overtime and Allowances, Sickness Absence/Attendance, Prompt Payment of Accounts, Procurement, and Section 41 Detentions

The findings and suggested remedy under the numbers 1, 2, 3, 14, 18 to 21, 23 to 26, 28

AGS has contended that there is a small amount of personal information in the report that is exempt under section 37(1). Having regard to the definition of personal information, I am satisfied that the disclosure of the last four sentences under the subheading "Sick Leave" on page 13, and the disclosure of member reg. numbers and the rank of the member where it is included with the reg. number, and expense claim numbers and amounts, in the appendix, would involve the disclosure of personal information relating to third parties and that section 37(1) applies. I am satisfied that none of the other provisions of section 37 serve to disapply that exemption in this case.

I am satisfied that all of the information I have outlined above as coming within scope should be released, with the exception of the information I have found to be exempt under section 37(1).

Pages 10 to 12
The information contained in pages 10 to 12 that AGS wishes to protect is concerned with Garda rosters and deployment. In Case 160196, I found that AGS was not justified in refusing access to details of staffing levels of AGS at sub-district level as at 31 December 2015. While details of the numbers of Garda members that were on duty in the various districts within the Cavan/Monaghan Division are included in the withheld information, it seems to me that the information contains significantly more detail relating to the rostering and deployment of those resources. Indeed, that level of detail is such that it would be unreasonable, in my view, to consider the information as administrative in nature relating to human resources. In my view, disclosure of the information would serve to disclose operational information relating to AGS. On balance, I find that, in the particular circumstances of this case, that the information contained in pages 10 to 12 falls outside the scope of the Act as it cannot be described as administrative information relating to human resources, or finance or procurement matters.

Record 4
This internal audit report concerns the Regional Support Unit (RSU) based in the Eastern Region. AGS describes the RSU as a "second tier armed response unit". It stated that when the report was compiled in 2015, the RSU was under the command of the Regional Assistant Commissioner, with the Regional Detective Superintendent having operational responsibility. It further stated that following organisational restructuring in 2016, the RSU Units still remain under the operational control of the Detective Superintendent in the respective regions, but training and equipment standardisation is now under the remit of the Detective Superintendent of the Special Detective Unit (SDU). On this basis, it argued that the Act does not apply to parts of the report relating to the Special Detective Unit pursuant to section 42(b)(iii) of the FOI Act.

Section 42(b)(iii) provides the Act does not apply to a record held or created by AGS that relates to the SDU. While AGS has not specifically identified those parts of the record to which it believes that section 42(b)(iii) applies, it seems to me that the only section of the report that concerns training and equipment is the part headed "3. RSU Equipment". It seems to me that the section in question cannot be said to relate to the SDU, notwithstanding the fact that equipment standardisation is now under the remit of the SDU. Rather, the section is concerned with the equipment that was available within the RSU, at a time when SDU had no responsibility for such matters. I find, therefore, that section 42(b)(iii) does not apply.

AGS stated that it is willing to release the following parts of the report:

AGS argued that the remainder of the record is outside of scope, pursuant to Schedule 1, Part 1(n), apart from the specific claim reference numbers and personnel numbers which it considers to be exempt under section 37(1). Having carefully examined the record, I am satisfied that the majority of the remainder of the report falls outside the scope of the Act. However, I am satisfied that the following information concerns administrative matters relating to human resources, finance, or procurement and is within scope:

Page 13: The first three paragraphs and the first paragraph under the heading "4. Official Vehicles &amp; Vehicle Fuel"
Page 14: All text from "The audit found ..."" up to and including the table containing maintenance costs ; The two paragraphs of text under the subheading "Vehicle Fuel"
Page 15: All text under the subheading "Priority 3"

I am also satisfied that AGS was justified in refusing access to the specific claim reference numbers and personnel numbers in Appendix 2 under section 37(1).

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of AGS. Apart from the information contained in the records that AGS has already agreed to release, as outlined above, I direct the release of the following:

Record 2:

Page 2: Review Audit Opinion 3

Page 3: Review Audit Opinion 5

Pages 5/6: All text under section headed "3. Procurement"

Page 8: All text under section headed "5. Financial Management"

Pages 9/10: All text under section headed "6. Management of Overtime and Allowances"

Page 27: The first three lines of text ; All text under the subheading "Management Response"

Page 40: All remaining text

Page 41: The first four lines of text

Appendix to Record 3:
Apart from member reg. numbers, the rank of the member where it is included with the reg. number, and expense claim numbers and amounts, the following information should be released:

Under Divisional: The findings and suggested remedy under the headings Management of Overtime and Allowances, Sickness Absence/Attendance, Prompt Payment of Accounts, Procurement, and Section 41 Detentions

Under Carrickmacross District: The findings and suggested remedy under the numbers 1, 2, 3, 14, 18 to 21, 23 to 26, 28

Record 4:

Page 13: The first three paragraphs and the first paragraph under the heading "4. Official Vehicles &amp; Vehicle Fuel"

Page 14: All text from "The audit found ..."" up to and including the table containing maintenance costs ; The two paragraphs of text under the subheading "Vehicle Fuel"

Page 15: All text under the subheading "Priority 3"

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.